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* Retired Senior Judge Assigned to the Superior Court. NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEPHEN RILEY QUAGLIARELLO

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1449 EDA 2017 Appeal from the Judgment of Sentence March 28, 2017 In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP

- 23

- CR

- 0006240

- 2015

BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY BOWES, J.: FILED JUNE 1 8 , 20 18
Stephen Riley Quagliarello appeals from the judgment of sentence
imposed following his conviction of possession of a controlled substance and
possession with intent to deliver

. Specifically, he challe nges the September
20, 2016 amended order denying his motion to suppress evidence. We

vacate Appellant’s judgment of sentence, reverse the order denying
suppression, and remand for further proceedings consistent with this

memorandum.
In support of it sup pression ruling, t he trial court made the following
findings of fact:

Officer Jonathan Lakose is employed by Haverford Township Police Department. He has been a police officer for 16 years [, and] has been involved in over 100 drug investigations. [He] i s aware of certain areas of Haverford Township that are high

- crime and high

- drug areas. Officer Lakose is familiar with Barnaby’s of America, located at 1901 Old West Chester Pike inJ

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Haverford Township [, but] would not specify Barnaby’s or its adjacent pa rking lots as high

- crime or high

- drug areas [, and] does not know of previous observations by the narcotics unit of that area. Officer Lakose has previously made arrests for drug possession in the parking lot of Barbaby’s, the most recent for possession of marijuana.
On the night of September 26, 2015, Officer Lakose was on assignment, in full uniform and in a marked “ghost” police vehicle parked in the parking lot located between 200 and 300 feet away from Barnaby’s. “Ghost” police vehicles are charact erized by reflective “POLICE” lettering printed on the side of a vehicle that is otherwise unmarked. At that time [,] Officer La [ k ] ose observed a single male exit the bar and enter a dark

colored Infiniti. Officer La[k]ose observed the vehicle for several moments and the vehicle did not start nor appear as if it was going to leave. Several moments later, two other individuals exited the bar and entered the vehicle Officer Lakose was watching. Officer La[k]ose continued to watch the vehicle for several mi nute s . The vehicle did not start throughout the duration of Officer La[k]ose’s observation. After observing the vehicle[,] Officer [L]a[k]ose determined the vehicle was not intending to leave. Based on [his] experience and training[,] he suspected the o ccupants of the vehicle were engaged in illegal narcotics activity.
Officer La[k]ose approached the vehicle in his car. He did not activate his overhead lights. [He] parked his vehicle behind the dark

- colored car, “in a manner that the vehicle could have backed out if it intended to or needed to ....” [He] got out of his vehicle and approached the driver’s side and engaged the driver in conversation. [He] did not have his gun drawn . [He] asked the occupants of the car what the y were doing [, and] observed the driver’s hands shaking, lips quivering and a very apparent appearance of nervousness. Officer La [ k ] ose did not recal l the driver appearing drunk o[r] intoxicated in any way. At that point, Officer L a[k]ose highly suspecte d that there was criminal activity going on and he requested backup. Several other units responded. The vehicle’s ownership was connected to the driver.
[ Appellant ] was sitting in the front passenger seat. At some point after backup had arrived, whil e Officer La[k]ose was speaking with the driver, Officer Lakose could clearly seeJ

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[ Appellant ] concealing something under the front passenger seat

. At that time, fearful that [ Appellant ] may have been attempting to conceal a weapon, Officer La[k]ose reques ted [Appellant] to exit the vehicle

. Based on [Appellant’ s ] body language and Officer Lakose ’s experience, Officer Lakose believed [Appellant] was going to flee on foot. For officer safety and to continue the investigation, Officer La[k]ose detained a nd hand cuffed [Appellant] and then continued to question the driver. Officer La[k]ose had previously made many arrests for weapons possession while working in the City of Coatesville, a n d he was “familiar with the types of furtive movements that people who a re concealing things [make]. Underneath the seat is a very common place to conceal objects such as weapons.” After [ Appellant ] was detained, Officer La[k]ose searched the area where [ Appellant ] was seated. The search produced several baggies of cocaine. [ Appellant ] was then arrested and taken to the police station to be processed. [ Appellant ] was not the owner of the dark

- colored car.

Amended Order , 9 / 20 /16, at 1

- 5 (paragraph numbers omitted, formatting

altered , and citations to the record omitted). 1
Appellant was subsequently charged with possession of a controlled
substance and possession with intent to deliver . He filed an omnibus pretrial
motion, which included a motion to suppress the cocaine found under the
passenger seat. The trial court conducted a suppression hearing and, o n July 15, 2016, entered an order denying the motion to suppress

. Appellant

filed a motion for reconsideration , and the trial court conducted a nother
hearing. On Septembe r 20, 2016, the trial court entered an amended order
again denying the motion to suppress. In its amended order , the trial court

_________________ __________ ______ ____ _______

1 We discuss infra how this recitation of facts is not supported by the record.J

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determined that, while Appellant had standing to assert a constitutional
violation, he nevertheless could not prevail on a suppression motion
challenging the constitutional ity of the search because he did not establish a reasonable expectation of privacy in the passenger area of the vehicle

. Following a bench trial held on January 10, 2017, the trial court found
Appellant guilty of possession of a controlled substance and possession with

intent to deliver. On March 28, 2017 , the trial court sentenced Appellant to
an aggregate term of three to twenty

- three months incarceration. Appellant
filed a timely n otice of a ppeal and a court

- ordered Pa.R.A.P. 1925(b) concise

stateme nt of matters complained of on appeal. This matter is now ready for

our review.
Appellant raises the following issues:

I. Whether the suppression court erred when it did not find Appellant was seized in violation of the Pennsylvania a nd United States Constitutions when O fficer Lakose ordered Appellant back into the vehicle, which required reasonable suspicion or probable cause , and, at the time of Appellant’s seizure[,] Officer Lakose articulated only that Appellant exited a bar with two other individu als, sat in the passenger seat of a vehicle which remained stationary, appeared nervous, and attempted to exit the vehicle?

II. Whether the suppression court erred in failing to suppress evidence obtained in violation of the Pennsylvania and United States Con stitutions on the basis that Appellant had no reasonable expectation of privacy in the vehicle where evidence was discover[ed] subsequent to Appellant[’]s unlawful seizure?
Appellant’s brief at 2 (capitalization omitted).
On appeal from the denial of a s uppression motion,J

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- Our standard of review . . . is whether the record supports the trial court’s factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Galendez , 27 A.3d 1042 , 1045 (Pa.Super. 2011) ( en
banc ) (citation omitted). Additionally, “a ppellate courts are limited to
reviewing only the evidence presented at the suppression hearing when
examining a ruling on a pre trial motion to suppress. ” Commonwealth v.
Bush , 166 A.3d 1278, 1281

- 82 (Pa. Super. 2017) (cit ation omitted). “ It is
within the suppression court ’ s sole province as fact

- finder to pass on the

credibilit y of witnesses and the weight to be given their testimony.” Id

. at
1282 (citation omitted).

T o secure the right of citizens to be free from unreasonable search and

seizure , courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens to the extent those interactions compromise individual liberty. See

Commonwealth v. Reppert , 814 A.2d 1196, 1201 (Pa.Super. 2002) ( en

banc ). For this purpose, courts in Pennsylvania have defined three type s of
police interaction: a mere encounter, an investigative detention, and a
custodial detention. A mere encounter is characterized by limited police

presenc e , and police conduct and questions that are not suggestive ofJ

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coercion. Such encounters do not obligate the citizen to stop or respond
and, consequently, need not be supported by any level of suspicion. See id

. Thus, the hallmark of a mere encounter is that th e subject is free to decline
to interact with the police or to answer questions, and is also free to leave at
any time. See Commonwealth v. DeHart , 745 A.2d 633, 636 (Pa.Super.
2000).
If, however, a police presence becomes too intrusive, the inter action

must be deemed an investigative detention or seizure. An investigative
detention, by implication, carries an official compulsion to stop and respond

. Id

. Since this interaction has elements of o fficial compulsion it requires

“ reasonable suspicion ” of unlawful activity. Id

. Finally, a custodial
detention occurs when the nature, duration and conditions of an
investigative detention become so coercive as to be, practically speaking,
the functional equivalent of an arrest. Id

.
To decide whether a seizure has occurred, a court must consider all

the circumstances surrounding the encounter to determine whether the

demeanor and conduct of the police would have communicated to a
reasonable person that he or she was not free to decline the officer’s req uest

or otherwise terminate the encounter. Thus, the focal point of our inquiry

must be whether, considering the circumstances surrounding the incident, a
reasonab le person would have thought he was being restrained had he been

in the defendant’s shoes. Reppert , supra , at 1201

- 02

. Examples ofJ

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circumstances that might indicate a seizure include the threatening presence
of several officers or the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled. See

Commonwealth v. McClease , 750 A

. 2d 320, 324

- 25 (Pa.Super. 2000).
Initially, we conclude that the trial court’s factual findings are not
supported by the evidence presented at the suppression hearing , and we are
therefore not bound by them . In its factual findings, as set forth in the
amended order, the trial court misconstrued the order of events, as
presented at the suppression hearing. Specifically, Officer Lakose testi fied
that, after he had initially approached the vehicle, and began speaking with
the driver, Appellant briefly exited the vehicle before Officer Lakose , believing Appellant was about t o flee, ordered him to get back in the vehicle.

See N.T. Suppression, 6/3/16, at 12

- 14, 36

- 37. The trial court overlooked

Officer Lakose ’s testi mo ny that only after Appellant had been ordered to get

back in the vehicle did he see Appellant reach under the passenger seat. Id

. at 18

- 20. According to Officer Lakose, u pon viewing this action , he removed
Appellant from the vehicle , placed him in handcu ffs , and the area under the
passenger seat was searched, resulting in the discovery of the cocaine. Id

.
at 19

- 20

. T he trial court’s omission of Officer Lakose’s directive and its

erroneous recitation of the facts is fatal to its analysis, and critical to our
determination herein.J

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Notably, Officer Lakose’s statement to Appellant was neither a
question n or a suggestion. Rather, h e “ ordered ” Appellant to get back in the

vehicle. See N.T. Suppression, 6/3/16, at 14 , 36

- 37

. Moreover , Officer

Lakose’s show of authority was bolstered by the presence of several other
police officers that he had summoned to the scene. See id . at 18; see also

id . at 37

- 38 (wherein Officer Lakose stated that at least three or four other
officers had arrived at the scene, in three or four other police vehicles)

. Under these circumstances, no reasonable person would have felt free to
disregard Officer Lakose’s order and leave the scene. Rather, a reasonable
person in Appellant’s situation would no doubt conclude that any att empt to leave the scene after Officer Lakose’s order to stay in the car would have
invoked compulsion by the officers. See McClease , supra at 325. Indeed,
Officer Lakose conceded that, upon ordering Appellant to get back into the
vehicle, he was “not fre e to go.” See N.T. Suppression, 6/3/16, at 37.
Accordingly, we conclude that, upon Officer Lakose’s utterance of this order , Appellant was seized and an investigative detention commenced. See id

. Having concluded that a seizure occurred, we must next determine

whether the Commonwealth demonstrated that there was reasonable
suspicion to support it

. An investigatory detention is justified only if the
detaining officer can point to specific and artic ulable facts which, in
conjunction with rational inference s derived from those facts, give rise to a
reasonable suspicion of criminal activity and therefore warrant the intrusion.J

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Commonwealth v. Hall , 735 A.2d 654, 659 (Pa. 1999). The officer “must

be a ble to articulate something more than an inchoate and unparticularized
suspicion or hunch. ” United States v. Sokolow , 490 U.S. 1, 7 (1989)
(internal quotation marks and citation omitted).
Appellant cites to Commonwealth v. DeWitt , 608 A.2d 1030 (Pa.
1992) , in support of his argument that Officer Lakose lacked reasonable
suspicion to seize him. In DeWitt , our Supreme Court considered whether

furtive movements of vehicle occupants, together with other allegedly
suspicious circumstances , created reasonable suspicion

. In that case, the

defendant was seated in a legally parked vehicle with others when the police
approached the vehicle , ostensibly to investigate the potential involvement

of the occupants in criminal activity reported in that area. As the police

neared the vehicle, they observed the occupants inside making furtive

movements as if they were trying to hide something. When the officers

reached the vehicle , the defendant attempted to flee on foot and the officers

gave chase. When the o fficers captured and searched the defendant, they

discovered on his person marijuana, other controlled substances, and drug
paraphernalia. On review, our Supreme Court held that the seizure was illegal because even the combined circumstances of furtive movements, late

time of night, previous reports of criminal activity in the area, and flight, did

not establish an adequate basis for reasonable suspicion. See id

. at 1034

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T he facts of this case are a l so akin to those in M cClease , wherein the

defendant was stopped late at night in an area that had previous reports of
criminal activity. Prior to the stop, police officers driving by noticed the

defendant sitting in his legally parked car with his head down as if he were
looking at his hands

. As the police vehicle passed the defendant’ s vehicle,

he raised his head and looked at the officers

. As he did so, his eyebrows
raised, his eyes got wider, and he immediately lowered his body. Upon
observing these movements, the officers exited their vehicle and approached

the defendant’s vehicle. O ne officer noticed the defendant was attempting

to exit the vehicle , at which point the officer ordered him to stay in the

vehicle. The defendant complied , but attempted to discreetly toss a

m arijuana blunt under the car

. As the officers drew near the vehicle, the y noticed an open container of alcohol and a large amount of cash in the
ashtray . They later found cocaine and marijuana in the trunk. On review,

we concluded that as soon as the officer ordered the defendant to get back

in the vehicle, he was seized, and an investigative detention commenced.

McClease , supra at 325. We further determined the seizure was illegal

because a motorist ’ s furtive movements up on the approa ch of police, even
late at night in an area of reported criminal activity, did not establish

reasonable suspicion for an investigatory detention. See id

. at 326.

In the instant case, Officer Lakose had fewer facts to establish

reasonable suspicion than did the officers in DeWitt and McC l ease

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Although Officer Lakose was concerned that Appellant might be attempting

to flee, our Supreme Court has ruled that flight, in and of itself, does not

constitu te reasonable suspicion of criminal conduct. DeWitt , supra at
1034. Moreover, a s Officer Lakose conceded, the parking lot in question was

not considered by police to be a high

- crime or high

- drug area, nor had it
been previously subject to surveillance by the narcotics unit. See N.T.
Suppression, 6/3/16, at 9

- 10, 25

- 26. Officer Lakose observed no illegal
activity , weapons or contraband

. Id . at 34

- 35. T he vehicle in which
Appellant was located was lawfully parked in a public parking lot for patrons

of the bar from which Appellant and the other individuals in the vehicle had
exited only two to three minutes earlier. Id . at 26

- 27, 29. While Officer

Lakos e described the driver of the vehicle as “extremely nervous” with
shaking hands and lips, see id . at 14, he made no such observation s with
regard to Appellant. 2 Rather, the only articulated bases for ordering
Appellant to get back in the vehicle were Offi cer Lakose’s statements that “in
my experience, when multiple subjects are sitting in a vehicle that time of
night outside of a bar . . . my suspicions were aroused that something was

_________________ __________ ______ ____ _______

2 Even if Officer Lakose had made the same observations regarding Appellant, it would not, in and of itself, suffice to create reasonable suspicion to support an investigative detention. See Re ppert , supra , at 1205 ( “Our courts have determined, on several occasions, that . . . excessive nervousness [does not] provide a sufficient basis upon which to conduct an investigatory detention.”).J

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afoot[,]” and “I was very concerned th at he was going to flee on foot , b ased
on his body and my experience.” Id . at 13

- 14 , 15.

A pplying our Supreme Court jurisprudence to the facts of the instant
case, the specific and articulable facts observed by Officer Lakose , and any
rational inferences drawn therefrom, are insufficient for us to conclude that

he possessed the requisite reasonable suspicion to support an investigative

detention

. Instead , Officer Lakose’s suspicion amounted to nothing more

than an “unparticul arized

. . . hunch.” Sokolow , supra at 7. Consequently,

the seizure of Appellant was illegal.
In the instant case, the illegal detention occurred when Officer Lakose
ordered Appellant to get back in the vehicle without any reasonable
suspicion that criminal activity was afoot. A few minutes later, Appellant

reached under the passenger seat. Had Officer Lakose not illegally seized
Appellant, he would have been free t o leave , and could have done so when
he initially got out of the vehicle

. Thus, the illegal detention was clearly the

causative factor in Appellant reaching under the passenger seat , and the

cocaine subsequently found there w as fruit of the poisonous tree

. See

McC l ease , supra

. 3

_________________ __________ ______ ____ _______

3 Ba sed on the record before us, it is unclear whether th e cocaine was already under the passenger seat before Appellant reached there, or whether Appellant placed it there. To the extent that Appellant placed the cocaine there when he reached under the passenger seat, it is fruit of the poisonous tree. See Mc C l ease , supra at 327 (holding that, when an illegal (Footnote Continued Next Page)J

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Finally, we address the trial court’s suppression ruling. Appellant

c laim s that the trial court further erred in denying his motion to suppress on
the basis that Appellant had no reasonable expectation of privacy in the area
of the vehicle in which the drugs were found. Relying on Commonwealth

v. Shabez

z , 166 A.3d 278 (Pa. 2017), Appellant argues that he ne ed not
prove that he had a reasonable expectation of privacy in the vehicle

. He

contends that , under Shabezz , when an illegal detention precedes a vehicle
search, evidence obtained during the search is tainted by the illegal
detention, and is inadmissible against the driver and passengers alike as
fruit of the poisonous tree.

In Shabezz , our Supreme Court addressed the question of whether,
following an unconstitutional vehicle stop, the Fourth Amendment requires a
passenger to demonstrate a reasonable ex pectation of privacy in those areas
of the vehicle that are searched and that yield incriminating evidence

. Shabezz , supra at 284

. The High Court ruled that a passenger in a vehicle
that was stopped unconstitutionally by police was “ seized ” under the Fou rth (Footnote Continued)

_____________ __ ________ detention occurs without reasonable suspicion, and causes the defendant to abandon contraband, the contraband is considered fruit of the initial illegality ) ; see also Commonwealth v. Matos , 672 A.2d 769, 774 (Pa. 1996) (stating that the exclusionary rule should be applied to suppress evidence of abandoned contraband when the contraband was abandoned after an initially illegal detention); Commonwealth v. Jeffries , 311 A.2d 914, 918 (Pa. 1973 ) (holding that when the police unlawfully detain a person, and the unlawful detention motivates the person to abandon contraband that is then discovered by the police, the evidence is tainted as a result of the initial illegality).J

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Amendment , and had automatic standing to challenge the constitutionality of

the search. Id . at 287. The Court further ruled that “ evidence derived from
an illegal automobile search constitutes fruit of the poisonous tree as a
result of the illegal seizure (unless the taint is removed), and that no further
demonstration of a privacy interest in the area from which the evidence was
seized is required by the Fourth Amendment. ” Shabezz , supra at 287

- 89
(rejecting the Commonwealth’s argument that the pa ssenger must also
demonstrate a reasonable expectation of privacy in the areas of the vehicle
within which the incriminating evidence was found)

. As the Court explained,
when the defendant seeking suppression following an illegal vehicle stop is
the passe nger, t he dispositive legal issue is the causal relationship between
the traffic stop and the discovery of the evidence , i.e ., whether the evidence

found in the car was “ fruit ” of the illegal stop , and the initial illegality has not
been removed by other c ircumstances

. Id . at 289

. In this case , the exploitation inquiry is readily satisfied. As we have
already determined, Appellant was seized, and that the seizure was illegal

. Thus, the only remaining inquiry for suppression purposes is the causal
connection between the illegality and the evidence discovered, i.e ., whether
the cocaine was obtained by police exploitation of the illegality. Here,
Appellant was ordered by Officer Lakose to get back in a vehicle that was
surrounded by sev eral police officers

. The police saw him reach under the
passenger seat , removed him from the vehicle, handcuffed him, search edJ

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the passenger area , and found the cocaine

. The search occurred shortly

after Officer Lakose had ordered Appellant to get back in the vehicle. The
discovery of the cocaine was a direct and immediate consequence of the
seizure, and, thus, was an “ exploitation ” of the constitutional violation.
Additionally, the record is devoid of any indicia that the taint of the
illegal seizure was removed before the police searched the vehicle and found

the cocaine

. See Shabezz , supra at 290 (“ None of the traditional
circumstances that have been found to purge the taint of an uncons titutional
act, i.e. attenuation, inevitable discovery, independent source, or some
intervening act or event,

. . . are present in this case. ”). The search
occurred minutes after the seizure, thereby precluding any viable argument

that the search was suff iciently attenuated from the seizure so as to purge
the taint of the initial illegality. See id

. Accordingly, the cocaine is fruit of
the poisonous tree, which should have been suppressed by the trial court.

We conclude therefore that the seizure of Appe llant in this case was
illegal. The trial court erred in failing to recognize that illegality and in
failing to order suppression of the physical evidence it produced.
Consequently, we vacate Appellant’ s judgment of sentence , reverse the
orders denying su ppression, and remand for further proceedings consistent

with this memorandum

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Judgment of sentence vacated

. Orders denying suppression reversed

.
Case remanded for further proceedings consistent with this memorandum

. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/18/18